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Monday, November 19, 2007

Are You Embarrassed Yet? Keller and CCA create new, absurdist rule on when cops can tamper with evidence

So after the recent Texas Court of Criminal Appeals ruling, when can police officers hand out drugs to encourage people to become snitches?

A commenter complained yesterday that I'd written about the Clinton Stewart case - a police officer who gave a portion of confiscated marijuana back to a suspect to convince her to become a snitch - merely from news and blog accounts, which was true. So this morning I took a look at the opinions myself, only to find the ruling more insidious, even, than I'd previously believed. Certainly the case may offer significant, bad precedential value when similar, future cases of evidence tampering arise. Naturally, Presiding Judge Sharon Keller wrote for the majority:

the evidence appears to be legally insufficient to show that appellant had the conscious objective or desire to impair the availability of the marihuana as evidence. The missing marihuana bud would not have changed the category of the offense, and the remaining marihuana was certainly enough to convict Lavender, if the State was interested in pursuing a prosecution. Indeed, appellant's conduct appears to have been motivated by the belief that Lavender would escape prosecution by becoming an informant, and as a result, the entire quantity of marihuana would be destroyed anyway. (emphasis added)

So here's the new rule in Texas, as I understand it: Officers who confiscate drugs from a suspect may return a portion of the drugs to them - for whatever reason, in this case to convince them to act as an informant - without being guilty of evidence tampering, so long as the weight of the drugs left in police custody would not change the level of offense the person is charged with.

For example, possessing between 4-200 grams of cocaine is a second degree felony offense, garnering a potential 2-20 years. So if an officer confiscated 150 grams of cocaine, the COCA majority wouldn't consider it evidence tampering unless the officer gave away MORE than 145.99 grams.

The court raised the possibility that the officer might have been charged with Class B delivery of marijuana, instead. But that charge, to me, doesn't seem to convey the same gravity toward official misconduct as evidence tampering. He didn't just deliver marijuana to entice an informant, in the bigger picture he delivered evidence.

The Court's grafting onto the required culpability a requirement that the tampering change the punishment category is not anything that the statute requires. The statute could have said that a person commits no offense if he destroys a portion of evidence that falls between the limits of a punishment category. But it doesn't, and this Court has no authority to amend it.

This amounts to judicial activism at it's very worst, pre-selecting an outcome based on judges' affinity for the defendant then concocting a new legal standard to erase his conviction.

Think about it - what if it were cash instead of drugs? Under this ruling, an officer would not be tampering with evidence to return ill-gotten gains to a suspect if the amount returned didn't affect the penalty category of the offense. Who believes that's right (I mean, besides five Court of Criminal Appeals members)?

We've been seeing more and more 6-3 and 5-4 CCA split decisions in the past year. I believe that's largely because quite a few members of the court are beginning to realize Judge Keller has led them into a jurisprudential snakepit of judicial activism, setting precedents conservatives will regret if courts ever change hands to liberals or moderates. In the comments yesterday, Doran Williams predicted just such an outcome from the Clinton Stewart case:

There is a long standing rule applied by both civil and criminal appellate courts that the jury is the final decider/arbiter of facts. They can believe a witness or they can refuse to believe him. In this case, the jury clearly did not believe the defendant witness' excuse or explanation. So they found him guilty as charged.

Generally, courts will not disturb a verdict which is clearly based upon the jury's [assessment of the] lack of credibility of a witness. Courts have discussed that rule in terms of the jury being right there, sometimes only 20 feet or so from the testifying witness, watching his expressions and listening to his voice. Demeanor "testimony" is what courts have called this, and they have ALWAYS deferred to a jury's decision against the credibility of a witness.

Until now, as this all Republican, 'lawn order,' pro-law enforcement biased CCA tosses those rules -- and the unimpeachable reasoning which underlie those rules -- into the toilet.

This all-knowing, all-seeing Court, without the benefit of having seen or heard the witness, just takes it upon their omniscient selves to decide that cop told the truth. What did they base this on? Not facts. They were not present at trial. They based it upon a bias in favor of law enforcement and against people who use drugs.

In short, the CCA cheated. ...

Here is the ironic kicker to come. When the tide turns, and there are again liberals and moderates on the CCA, they will have this opinion by some authoritarian, right wing Republicans to cite as authority for reversing jury verdicts. I hope to live to see it.

Yes, judicial chickens have a way of coming home to roost. I hear a lot of foment by GOP judicial candidates about their dislike for judicial activism, but this amounts to judicial activism of the worst sort, and the worst part it is, at "Texas' Worst Court," it's common as dirt. This is a horrible ruling that essentially approves low-level corruption and evidence tampering by officers.

12 comments:

This "more insidious, even, than I'd previously believed" line is getting a little thin. That seems to be your assertion whenever you actually make an effort to know what you are complaining about.

BTW, as someone who has to read all the cca's opinions, I tend to agree that this case was mistaken. The officer may not have intended to damage the case, but he did intend that the marijuana he gave back not be available for use at trial. OTOH, not every transgression needs to result in a criminal prosecution. I think a letter of reprimand should have been sufficient.

My "insidious" comment referred to the fact that the media coverage understated the egregiousness of the decision.

BTW, blog posts are short and I don't spend days writing each of them. Quite frequently, as in this instance, I'll comment initially on a news article then follow up in future blog posts as I learn more about it, recording each new piece of datum to gather a fuller picture. It's like the olds saying about how to eat an elephant: One bite at a time. Welcome to the blogosphere.

Anyway, as to your comments, despite the whining you seem to agree that:

"he did intend that the marijuana he gave back not be available for use at trial."

So we agree, then, that the jury and the 4th Appellate Court was were correct that he'd violated the law as written.

"OTOH, not every transgression needs to result in a criminal prosecution."

I agree with that statement, too, except this court reserves such discretionary generosity for "special" defendants like cops or Tom DeLay, but not for other cases that come before it, where it tends to be virulently anti-defendant (as Doran Williams pointed out).

I couldn't agree more with both your statements. But will you be similarly calling for leniency when it's not a cop who's the defendant? If so, I applaud you for your consistency. If not, you're position is untenable. best,

While I tend to agree that this defendant should have been convicted, your blog posting implies that the Court has deemed this cop to be innocent of any wrongdoing whatsoever. After holding the evidence insufficient for the tampering charge, they wrote, "That does not mean appellant did nothing wrong. At the very least, he appears to have committed the Class B misdemeanor offense of delivery of marihuana."

Although I agree with Womack here more than Keller, the fact that the court finds the evidence insufficient in this case is explicitly not an endorsement of the officer's conduct.

Perhaps not. But it explicitly IS a dictum by the court to the effect that officers who engage in such conduct cannot be convicted of evidence tampering if they only give away part of the dope, money, whatever, so that the amount in the evidence locker remains within the punishment threshold. That's an indefensible outcome, however you slice it, and I'll bet you dollars to donuts officers get future tampering cases dismissed as a result of the new, ridiculous standard.

"I'll bet you dollars to donuts officers get future tampering cases dismissed as a result of the new, ridiculous standard."

Or worse. Maybe future tampering cases won't even be prosecuted. It sounds like if the cop had returned cash instead of drugs he would be guilty of nothing. No drugs, no "Class B misdemeanor offense of delivery of marijuana."

Do you really think this happens on a regular basis? Other than documented transfers during official undercover operations, I would be shocked to learn that police officers take evidence and give it to defendants without both criminal and agency-related sanctions. If you really think that officers are going to look at this case as a green light to start dipping into the evidence locker for gifts to informants, you are delusional. The moron involved in this particular case is an aberration; almost any other officer would expect to be fired and/or prosecuted for doing something like this.

The officer's actions would appear to be a question of discretion. Possibly the misuse of discretion.

In years past, and probably present, officers have had minors they've caught with alcoholic beverages pour the beverage into the barrow ditch (or for y'all city folks "gutter") and then have the kids carry the empties to the nearest trash container. Officers have been known to shake out a baggie of marijuana into the weeds and then hand the empty baggie back to the offender with instructions not to litter the parking lot with the baggie.

In the forgoing scenarios the offenders normally aren't charged with anything. Proper use of discretion? Maybe, maybe not.

Problem I see here is: The officer after seizing the MJ and deciding to file charges returned some of the evidence to the offender. Key word: "evidence". Bad call.

(c) An offense under Subsection (a) or Subsection (d)(1) is a felony of the third degree.

(d) A person commits an offense if the person:

(1) knowing that an offense has been committed, alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense;

My FTO back in '71 told me, "Either write 'em or chew their ass, but don't do both."

If the officer intended to file a criminal case he should have placed ALL the evidence into the property room to be used in court just like his departmental policy states and just like he's been trained to do.

If the prosecution proved up the elements of the offense of tampering beyond a reasonable doubt and there was no procedural problem, where does the CCA get off reversing the original judgment?

Looks like the CCA thinks it's a mini-SCOTUS that has the authority to legislate from the bench. "We do it because we say we can."

Doran Williams overstates the credibility determination rule. The appellate court should give deference to the fact-finder's credibility determinations; however, it is not absolutely bound by those determinations.

Maybe for most courts he overstates it, 9:59, but at the CCA they give nearly total deference on such questions to the trial court, often unreasonably so. I've seen cases where they not only said appellate courts erred by evaluating witness testimony, but where the CCA said appellate judges must defer to the trial court even on video where they could see the evidence as well as the jury. I think Doran's right that's a big flip flop for this particular court.

As to the question do I really think this happens on a regular basis, my answer would have to be, "I don't know." I think it will happen more often, in any event, now that the CCA has said officers can't be charged with evidence tampering when they do.

The new rule also seems to open the door to a lot of abuses in non-drug cases where the contraband returned wouldn't open the officer up to the separate delivery charge.

This is in response to the Anonymous who suggested that I “overstate(d) the credibility determination rule.”

The quoted material below is from page 3 of Bailey v. State, a 2001 opinion of the Austin Third Court of Appeals. Bailey is not in the S.W.3d reporter system; it can be found in the Westlaw system. Note that the Third Court of Appeals relies primarily upon the Texas Code of Criminal Procedure, and opinions of the US Supreme Court and the Texas Court of Criminal Appeals as authority, and upon intermediate appellate court opinions in cases where there was no petition for review or a petition was refused.

Judge Keller wrote in the Stewart majority opinion that the evidence was legally insufficient to support the verdict of guilty. Here is the standard for determining the legal sufficiency of the evidence:

“To determine the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict and ask if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 324 (1979); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex.Crim.App. 1981).”

The trial judge in Stewart, the San Antonio Court of Appeals, and four judges of the Texas Court of Criminal Appeals concluded that a rational trier of fact could have found the essential elements of the offense. Their conclusions are not irrational. Judge Keller and four other judges of the CCA found that a rational trier of fact could not have made such a finding. They were able to arrive at that conclusion by turning the standard upside down and looking at the evidence in a light most favorable to the defendant and against the verdict. That “test” or “standard” was rejected by the CCA at least 25 years ago, and maybe prior to that time, primarily at the insistence of prosecutors and jurists.

As for the jury “credibility determination rule,” here is the case law on that:

“The jury is the exclusive judge of the facts to be proven, the weight to be given the testimony, and the credibility of the witnesses. Tex.Code Crim.Proc. Ann. Art. 38.04 (West 1979); Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App. 1993). The jury may accept or reject any or all of the evidence presented by either party. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). The jury is free to draw reasonable inferences from basic facts to ultimate facts. Welch v. State, 993 S.W.2d 690, 693 (Tex.App.–San Antonio 1999, no pet.); Hernandez v. State, 939 S.W.2d 692, 693 (Tex.App.–Fort Worth 1997, pet.ref’d).”

The Majority of the CCA in Stewart did not address these authorities, distinguish them, tell us why they did not apply in this case, or even mention them; the Majority just ignored them. The scholarship exhibited by both the Majority and Dissenting opinions in Stewart is just abysmal. The Majority opinion is not just bad on the merits, it is poorly written and totally without any authority to support it. Neither opinion cited any cases as authority for their respective positions. Judge Keller has the best excuse for that failure: There are no cases which she could have cited to support her opinion. Judge Womack, however, could have filled 3 or 4 pages with a well-reasoned, scholarly, erudite opinion fully supported by cases from his own and previous Courts of Criminal Appeals. That he did not is just amazing, and may lead to speculation which will further tarnish this Court’s reputation with the lawyers of Texas and maybe with the public.

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